Conflicted regulation in the public interest

(first published on slaw.ca)

Fiduciary law deals strictly with conflicts of interest. A fiduciary is not permitted to have an interest that conflicts with the duties owed to their beneficiary unless the conflict and all material facts have been disclosed and consent is obtained Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2011 SCC 23. Where a fiduciary benefits without consent, the fiduciary is ordinarily required to disgorge the benefit whether or not the beneficiary’s interests have been compromised. Strother v. 3464920 Canada Inc., 2007 SCC 24

The Rules of Professional Conduct are no less strict. It is professional misconduct for a lawyer or paralegal to act where their self-interest conflicts with their duties to their client without proper consent. Some conflicts are not waivable. Transactions with clients are strictly regulated even where the lawyer or paralegal does not act on the transaction[1].

It is ironic that client conflicts are treated so seriously while the inherent conflict in self-regulation is mostly ignored. Commonly, this conflict is not really recognized or understood. Some think that the public interest is virtually invariably the same as the interest of the legal professions. Pressures from stakeholders and the realities of elections affect how elected benchers perceive issues and their roles.

Examples of conflicting self-interest in regulation

There are many examples which illustrate this inherent conflict. Describing a few helps make the point. In June, a proposal was made to Convocation in Ontario to allow charities and not-for-profits to hire lawyers and paralegals to provide legal services to the public. The idea was to attempt to address unmet legal needs by permitting those who currently serve people with other social, health and economic needs to add legal services to their offerings. Unlike the many proposals put to Convocation, this proposal provoked an immediate demand from legal stakeholders for time to consider and address the proposal, no doubt reflecting recent ABS debates. The proposal was deferred.

While I’m quite hopeful that lawyers will see the merits of this “civil society” proposal with fuller information and time to reflect, there is a long history of the private bar reacting defensively to other ways of providing legal services. In his book The Law Society of Upper Canada and Ontario’s Lawyers, 1797-1997, Christopher Moore details the early days of legal clinics in the 1970s. As Moore describes, the intent of these “storefront clinics” reflected the belief that legal assistance had to be delivered to poor communities through community networks and agencies which integrated legal advice with other kinds of assistance offered from accessible storefront ‘clinics.’ In 1971, Osgoode Hall Law School, with support from the Ford Foundation and the Canadian government, opened the Parkdale legal clinic. The following quotation from Moore’s book describes the reaction:

‘We were against this, we were violently opposed to this,’ recalled Gibson Gray, a future treasurer then on the legal aid committee. `They were … taking work on at the clinic … rather than having the work done by lawyers, traditional lawyers.’ That summer, there were rumours that the Law Society might seek an injunction against the law school’s storefront clinic, and benchers urged the professional conduct and unauthorized practice committees to investigate. …

… The Law Society’s irritation moved it to consider reclaiming the name `Osgoode Hall’ from the law school, but clinical legal aid (the phrase which soon replaced ‘poverty law’) proved irresistible. The Law Society, able neither to prevent nor to control their emergence, soon acknowledged that clinics were no real threat to private law practice, for they usually served a different clientele and often did counselling and community organizing work that extended well beyond legal practice. …

The reaction by the private bar to student legal clinics in the 1970s and to new practice structures in the 2010s[2] illustrates that self-interest has material effected consideration of new forms of legal service delivery. This is not to say that legitimate issues were not raised. In the 1970s, the way that student legal aid was brought forward was a challenge to the Law Society’s regulatory authority. Accordingly to Moore, “Arguing that supervising law students working in a storefront legal clinic was part of the law school’s educational mandate, Dean Gerald LeDain took the position that seeking permission from (or even informing) the Law Society was unnecessary”. Similarly, there are reasons to think carefully about allowing new forms of for-profit legal services[3]. But just as it is no answer to a disgorgement claim to say that no harm was suffered, it is no answer to concerns about the integrity of self-regulation to say that protectionism often leads to examination of legitimate issues.

Recent revisions to the advertising and referral fee rules provide another example. Over recent years, the traditional personal injury bar has faced significant new competition for clients. Significant investments were made in brand advertising. Referral fee-based business models capitalized on and fueled the advertising. Traditional ways of attracting clients were disrupted. The reaction of the traditional personal injury bar was to seek regulatory intervention. This is not at all to say that public and consumer interests were not engaged by these changed advertising and referral fee practices. They clearly were. And the traditional personal injury bar was no doubt motivated in part by concerns about the interests of injured people. But the fact is that these issues are, in part, reflective of competitive pressures between different parts of the private bar. The Law Society is currently considering contingent fee arrangements which are commonly acknowledged to require reform. The personal injury bar has a significant self-interest in contingent fee regulation. It is fundamentally important that the Law Society deal with these issues in the public interest and in the interest of injured people recognizing that access to justice, procedural and substantive, is what must drive deliberations about contingent fee arrangements.[4]

The recent Family Legal Services Review report by Justice Annemarie E. Bonkalo raises another cogent example. Lawyers and paralegals have been regulated together by the Law Society since 2007. Lawyer benchers and paralegal benchers are elected by their respective professions. While there are tensions within Convocation, I think that it is generally thought that this regulatory approach has worked well. Common perspectives on and approaches to appropriate professional conduct makes practical sense as does integrated professional conduct investigation and discipline. There are obvious synergies in licensing and ongoing professional competence. However, lawyers and paralegals compete for clients in some areas of practice. The extent of the permitted paralegal scope of practice engages the self-interest of both paralegals and lawyers.

These self-interests are obviously engaged by the Bonkalo Report. Lawyer benchers have been the target of organized communications from the family law bar, all framed in the public interest. Lawyer stakeholder groups are making forceful submissions against expansion of the paralegal scope of practice. I would be surprised if paralegal benchers are not receiving similar communications from paralegals. Paralegal stakeholder groups are naturally advocating for expanded scope of practice. To be clear, most benchers seek to rise above self-interest and to genuinely address the public interest in effective and fair resolution of family breakups. But my observation is that it is hard both for paralegals and lawyers to do this without their judgments being affected by self-interest. This is not surprising. Fiduciary law and professional conduct rules exist because we understand human nature and the cognitive biases that of us have.

These are but three examples of conflicting self-interest in self-regulation. Other examples are not difficult to find.

The need to act in the public interest and to reform governance

The point of this column is two-fold. The first is that each of these examples is live. It is important that the Law Society, the legal professions and stakeholder groups recognize how these issues need to be addressed. Just because self-interest is engaged doesn’t mean that legitimate issues are not raised. But professionalism and the integrity of self-regulation requires disciplined focus on the public interest and the interest of those we serve. If we do not regulate ourselves properly, we can expect that someone else will.

The second is that we should think hard whether our approach to governance effectively addresses conflicting self-interest and assures proper self-regulation. In Ontario, a Governance Task Force is currently charged to review of and make recommendations respecting the Law Society of Upper Canada’s governance structure. This question of how to address regulatory self-interest should be addressed by the task force,

A modest regulatory innovation might be to use public benchers as a formal check on self-interest. There are eight public benchers appointed to Convocation in Ontario. In meetings with over fifty voting members, these public members have an important role but a limited voice. Even without increasing the number of appointed members, these “lay” benchers could be formally responsible as a committee to consider and publicly report to Convocation on matters where regulatory self-interest is significantly engaged. Simply requiring that the public interest be addressed by public members should have a salutary effect.

Manitoba provides a recent example of significant governance change[5]. Manitoba has 23 benchers. There are 12 elected benchers, a bare majority. Six lay benchers are independently appointed. Four lawyer benchers are appointed by the other benchers applying criteria required to be established “such as the need for representation by region, demographics, type of law practice, or professional, leadership or management skill”. The Dean of the law school and an articling student are benchers as well.

In 2014, the Canadian Bar Association Futures Report recommended at pp. 50-51 that:

The governing bodies of law societies should be made up of elected lawyers, as well as a significant number of appointed lawyers and non-lawyers. The appointed governors should be selected by an independent appointment process designed to fill gaps in experience, skills and diversity.

There are no doubt other ways that governance reform could usefully address the problems of self-interest in self-regulation. Thoughts and suggestions by way of comment to this column would be helpful.

To every action (and sometimes even to an inaction), there is a reaction

It is easy and lazy to be apocalyptic including about the prospect of losing self-regulation in Canada. There is an ongoing risk of that but, at least for now, no real pressure for change. But failing to properly undertake responsibility in the public interest can result in loss of authority.

In his book, Moore provides an example. The resistance to the legal clinic model by the practising bar and the Law Society in the 1970s was followed by the appointment by the Ontario government of Justice John Osler “to investigate the delivery of legal services to disadvantaged groups, including aboriginal communities and isolated regions. Osler’s report laid the groundwork for a permanent network of Ontario legal clinics”. As Moore further notes “Osler also recommended that legal aid be transferred entirely from the Law Society to a publicly appointed board which might be more open than the lawyers to other innovations in delivery of legal services”.

Moore ends his discussion of this history noting that Law Society leaders subsequently acknowledged “in their way, that the Law Society alone no longer set the agenda on legal aid and much else affecting the profession. The principle of self-government endured, but authority over the legal was becoming permanently subdivided”.

I have previously written that unmet legal needs are a significant challenge to self-regulation.[6] This is not new as Moore describes. Failing to address legal needs not effectively addressed by the private bar resulted in loss of Law Society responsibility in the 1970s. Failing to do the same 40 years later risks similar loss. Given the extent and significance of unmet legal needs in family law, a protectionist response to the Bonkalo Report likely results in loss of authority over who may provide legal services in family law matters. This is not to say that Justice Bonkalo’s recommendations should necessarily be accepted. The point is that the self-interest of lawyers or paralegals is the wrong perspective from which to address the question.

The same can be said about contingent fee arrangements. The personal injury bar is vitally concerned with contingent fee arrangements. Ontario benchers will no doubt want to reflect carefully on what is said by personal injury lawyers in the current consultation. Their expertise and experience requires that benchers listen carefully. But their understandable self-interest requires independent consideration of recommendations for reform in the public interest. Again, failure to do by the Law Society so will likely result in loss of responsibility and authority.

Doing the smart thing and the right thing

It is clear that self-regulation can be lost all at once or bit by bit. For those who consider self-regulation to be essential to independence of the bar, the need for governance mechanisms and policy decisions to ensure that the public interest is advanced should be powerful. The same should be true for those who merely see value in self-regulation[7]. On an issue by issue basis, members of the private bar and their representatives should recognize that protectionist instincts that result in self-interested regulatory decisions can be counter-productive in the longer run. And in any event, those who have accepted responsibility in the public interest rather than the interest of their profession should of course act accordingly.

 

[1] Rules of Professional Conduct, Section 3.4, Paralegal Rules of Conduct, Rule 3.04

[2] See Alice Woolley’s slaw.ca column Bencher Elections – the Challenge to Self-Regulation’s Legitimacy

[3] Principle, not Politics

[4] Contingent Fees, Portfolio Risk and Competition – Calls for Reform

[5] Sections 6 and 7 of The Legal Profession Act, C.C.S.M. c. L107

[6] Unmet Legal Needs – The-challenge to legal practice and to self-regulation

[7] Independence and Self-Regulation

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